New York and Long Island Divorce and the Home

November 20, 2016 | Law and Mediation Office of Darren M. Shapiro, P.C.

Divorce and the Marital Residence

Divorces often aren’t easy. I have spent a number of years now guiding clients through the complications of divorce throughout Long Island, and New York. I’ve seen very few cases, although they exist, where there is a big dispute over lower priced property like furniture. Often if there is a dispute over assets it involves higher priced items like the marital residence. For most couples undergoing divorce, the biggest shared asset to consider is the family real estate, marital residence or former matrimonial home, as it is referred to in legal circles. The family home is an emotive subject, and often the largest asset to share amongst parties – though investments, businesses, savings, retirement assets and pensions could be worth more or be considerable assets too.

Although it’s possible to leave the concerns of asset distribution to a judge – I often find that this leads to dissatisfaction for both spouses involved. In most cases, it seems that couples are best served when they exercise their right to come up with personal solutions themselves. My office gets involved with litigated matters, settlement negotiations, and alternative dispute resolution like mediation and collaborative law.

Agreeing on an Outcome

I often find that if both parties within a divorce still have a civil relationship, and would prefer to end their marriage with a simple, clean, and quick break – selling the property might be a good idea. The only issue that presents itself here is that the individuals involved will need to think about how the proceeds from the home are going to be divided between spouses. Regardless of how you choose to break up the family home, it’s important to remember that if you can agree to a solution using mediation or collaborative law, you can often find a solution that both parties can live with. If the attempt to come up with a solution outside of the courtroom fails, like through settlement negotiations between the lawyers on a case, then the judge presiding over the divorce case in New York will need to make a determination based on existing facts and laws. However, that process will remove the parties’ ability to create a better arrangement between themselves – sometimes causing both parties dissatisfaction with the outcome. Continue reading ›

Proof of Marital Debt and Divorce

November 12, 2016 | Law and Mediation Office of Darren M. Shapiro, P.C.

There are various subcategories of issues that need to be addressed in a divorce settlement or final order from acourt. Not only do you need to make decisions about various different things – including the debt that you and your spouse have gathered over the years – but you also need to think about what steps you can take to protect your financial future. Parties sometimes expect their debt and loans will be split in a certain way – only to find that a court may see things differently.

Just like a marital home, and various other assets, debt acquired during the course of a marriage can be regarded as marital debt, and therefore allocated between the spouses involved. Commonly, this means that couples during a divorce will have a choice to either settle the responsibility for debt before filing for divorce in a negotiation, mediation, collaborative law or other process, or a determination or agreement will be made while a divorce makes its way through the court system. Ultimately, the court will make the decision if the parties do not settle ahead of time.

The New York Domestic Relations Law indicates that financial obligations taking place through a marriage which aren’t the sole responsibility of one spouse, can be offset against the total marital assets that need to be divided. However, there needs to be some kind of proof showing that the debts in question were created for marital purposes. In other words – it’s up to the person who is claiming marital debt to prove that the debt they’re referring to was incurred for marital purposes (like paying household bills, rather than a separate vacation for example). Continue reading ›

Understanding Divorce and Social Security Benefits

November 8, 2016 | Law and Mediation Office of Darren M. Shapiro, P.C.

When it comes to arranging a divorce, many couples look for the various ways in which they might be able to protect themselves from future financial issues. Part of this may involve looking closelyat concerns regarding asset distribution between partners, and split pensions. In the case of senior divorces, one particularly important concern is the issue of social security benefits, and how they can be distributed between both spouses. Importantly, it’s worth noting that social security is not something that can be argued and negotiated in family law through litigation, collaborative law, mediation, or any other dispute resolution method. Instead, social security is something that must be determined by the federal law of social security. However, it is probably helpful to know what one’s financial situation will be, taking into account all resources, in the future.

As the social security administration posts on their website, in most circumstances, if you were married to your ex for a minimum period of ten years, and you decide to undergo divorce procedures, then you may be able to qualify for a social security benefit that is equal to (at most) 50% of your former spouse’s benefit amount. However, for this benefit to be received, you will need to be unmarried, aged 62 or over, and ensure that your ex-spouse is entitled to disability or social security retirement benefits. Crucially, to receive a portion of your ex-spouse’s social security payments, the benefit that you are entitled to will need to be lower than the benefit you would receive from your ex-spouse. Continue reading ›

What are the Underlying Concerns of Mature and Senior Divorces?

October 28, 2016 | Law and Mediation Office of Darren M. Shapiro, P.C.

There are many reasons why couples may choose to get a divorce at a later stage in their lives. Indeed, divorces cantake place for many of the same reasons attributed to younger breakups – including financial pressures, infidelity and more. Between 1990 and 2010, the divorce rate for people between the ages of 50 and older in the U.S. doubled according to a study by sociologists at Bowling Green State University, indicating that the further we move into the future, the more natural it is to consider divorce as a solution to an unhappy marriage. One thing I notice regularly about divorces that take place between older partners, is that there are a different set of concerns in play than the worries that might have taken precedence during divorce at an early stage. For instance, when seniors get a divorce, the main focus is on both the immediate and future financial security of those individuals. Child custody, parenting time, and child support might still be at issue. Often, however, with more mature couples, there are no issues regarding child support and child custody – as the children have grown into adults who can care for themselves. Instead, the primary issues are on things like the distribution of pensions and 401ks, the choice of whether a house is sold or kept, and whether maintenance, alimony or spousal support should be awarded.

In mature people and senior divorce cases, the financial issues can be particularly crucial because if both of the people involved are already retired, then there is less likelihood that either spouse will be in a position to create new assets or income. Even if one individual is still working, they may choose to retire and find that their earned income ceases. One of the first considerations in these divorce circumstances will often be maintenance. While many young couples agree to maintenance agreement that provides support for an ex for a shorter period of time, those exiting in long-term marriages might be seeking maintenance for a longer duration. The New York 2016 maintenance law does contain not only guidelines for maintenance amounts based on income, but it also has guidelines for the duration of post divorce maintenance. Continue reading ›

Child Support Arrears in New York

October 24, 2016 | Law and Mediation Office of Darren M. Shapiro, P.C.

Both parents are expected to support their children in New York. Generally, however, a non-custodial parent pays support to a child through the custodial parent. Many feel that child support is predicated on the idea that children should have the same lifestyle after a divorce as they had beforehand, which, as people transition from one household to two, is not always exactly possible. Child support, however, is not only applicable to divorcing parents.

When a non-custodial parent doesn’t pay court-ordered child support, there are numerous ways for the custodial parent or Support Collection Unit to enforce payments. If a parent is delinquent and owes back child support, that parent is considered to be in arrears. Unpaid arrears, that are reduced to judgment, accumulate interest even if you are paying child support currently.

For support orders entered after August 8, 1987, the Support Collection Unit or the other parent can require a delinquent parent to pay off arrears for 20 years from the date of default, regardless of whether that amount was reduced to a judgment. When arrears are reduced to a judgment, that judgment then is good for twenty years. The statute of limitations to enforce arrears for orders entered before that date is six years. Generally, child support obligations terminate automatically when a minor turns 21 years old, although there are instances when they continue, such as by agreement to pay beyond the age of 21 and payments of arrears can continue until the arrears are satisfied, but subject to the above statute of limitations.

How Do You Get a Spouse to Agree to Divorce Mediation?

October 14, 2016 | Law and Mediation Office of Darren M. Shapiro, P.C.

When you and your spouse agree that it might be time to consider a divorce, you’ll discover that there are a number of different routes available for you to choose from. Divorce doesn’tautomatically have to be about stressful litigation – it can be something that you come to terms about collaboratively, with the use of mediation. Mediation is a flexible process that can be used to help you sort out existing problems regarding the financial results of your divorce, or what needs to be done about child custody and parenting time. Unfortunately, just because one spouse decides that mediation may be the right call for their divorce needs – doesn’t mean that the other spouse will agree.

Sometimes, simply broaching the topic of mediation with caution and patience is a good way to get started in encouraging your spouse to agree to an alternative form of dispute resolution. After all, divorce is easily one of the most uncomfortable experiences a person can go through. Although you might be getting a divorce, that doesn’t mean that you shouldn’t be mindful and respectful of the other person’s feelings.

Approaching the Topic on Neutral Ground

A good way to encourage a reluctant spouse to reconsider the option of mediation, is to approach the subject from a position that is important to both of you. For example:

Consider the Children

Make sure that your spouse understands that through mediation, you can reduce some of the discomfort typically associated with aggressive court-based battles and litigation. This can be beneficial to the future relationships that both of you maintain with your children. What’s more, throughout the mediation process, you will both be in control of any decisions made about the support and parenting of your children – meaning that you can work together to fashion an agreement that works for both of you. Continue reading ›

When Should a New York Court Refrain From Ordering Forensics in Child Custody Cases?

October 7, 2016 | Law and Mediation Office of Darren M. Shapiro, P.C.

In an overwhelming number of cases, parents agree to a child custody arrangement without involving the court. However, some child custody cases are brought to court because parents are unable to agree. In those cases, the Supreme Court or Family Court is supposed to allocate to each parent decision-making, care-taking, and access to the child, making these determinations based on what would be in the best interests of the child.

Custody determinations related to best interests depend largely on the court’s assessment of the parties’ credibility, character, and temperament. The higher courts are not supposed to interfere with these determinations, made by a trial court, unless they lack a sound and substantial basis in the record.

Under New York Family Court Act § 251, the court can order anyone within its jurisdiction and the parent or other person legally responsible for the care of a child within its jurisdiction to be examined by a physician, psychologist, or psychiatrist designated for that purpose if the examination serves the purposes of the act. This person can provide a forensic evaluation that allows the court to determine which custody and visitation arrangement would be in the best interests of the child.

When Should a New York Court Order Forensics in Child Custody Cases?

September 30, 2016 | Law and Mediation Office of Darren M. Shapiro, P.C.

Child custody and time-sharing arrangements in New York are determined based on the children’s best interests. In some cases, a forensic evaluation is ordered. This may include general and specialized psychological testing and clinical interviews of the parents and children. In some cases, collateral information is also gathered, and home visits are made.

Forensic evaluations are not always necessary, but they may be appropriate in cases in which there are sharp factual disputes that affect the final determination of where a child will live and which kind of custody, parenting time or visitation arrangement is in the child’s best interest. Generally, the court will look at the circumstances of the parents and child and see whether there are particular issues that would warrant an in-depth inquiry. The court is supposed to order forensic evaluations sua sponte (on its own motion), even if neither party expressly requests it. The evaluator is typically appointed based on recommendations.

Issues that might necessitate a forensic evaluation may include relocation issues, a parent or a child’s emotional problems, allegations of alcohol abuse, or facts that indicate a custodial parent might undermine the relationship between a child and the other non-custodial parent. In Matter of Shanika M. v. Stephanie G., for example, Stephanie was the aunt of a child that her domestic partner, Shanika, and she were taking care of but never formally adopted. The parties separated when the child was two years old, and the child continued to live with Stephanie.

Proof of Child Support Payments and Cash Payments In New York

September 24, 2016 | Law and Mediation Office of Darren M. Shapiro, P.C.

The New York Family Court processes petitions for child support, establishes new child support orders, and determines whether a modification should be made to an existing child support order. It is possible to also utilize the Supreme Court to establish, enforce or modify child support, particularly in a divorce or postjudgment divorce case. Most child support payments in New York are made by a noncustodial parent paid direct to the other parent or through the Support Collection Unit (SCU).

Once the court has issued a child support order requiring the support collection unit to collect payments, the SCU collects and distributes the payments. If the noncustodial parent falls behind in payments, the SCU can enforce the order. Once a parent applies for services, the support order has to be paid through the SCU, and the custodial parent can no longer accept direct payments from a noncustodial parent or informally agree to change the support order. If the noncustodial parent wants to pay the custodial parent directly, the noncustodial parent should either make sure this is reflected in the initial order or file a modification petition subsequently in order to ask that a direct payment be credited to his or her account.

Once child support is ordered, the parent who is required to pay is given a payment instruction sheet, indicating how much to pay and how to make the payments. For parents who work, a notice may be sent to their employer with instructions about taking the child support payments out of the salary and sending them to the Support Collection Unit or SCU. However, these payments can also be taken directly from other income streams, such as unemployment or even a pension. Payments may not be deducted from a worker’s paycheck for a few weeks from the time of the child support order.

Validity of a Universal Life Church Marriage and Prenuptial Agreement

September 19, 2016 | Law and Mediation Office of Darren M. Shapiro, P.C.

In New York, an antenuptial agreement that goes into effect once the parties are married may be valid even if the minister that solemnized the marriage received his authority from an unconventional religion. In Oswald v. Oswald, the court considered the effect of a antenuptial or prenuptial agreement after a marriage ceremony performed by a Universal Life Church minister. The parties had executed the agreement three days before the ceremony, but its terms only took effect after the “solemnization of the marriage.”

The plaintiff sued five years after the marriage asking the court to declare the marriage void from the beginning and the antenuptial agreement unenforceable because the person performing the ceremony did not have legal authority to solemnize the marriage. Alternatively, he wanted a divorce. The defendant responded by denying the marriage was invalid and counterclaiming for a divorce. The parties both moved for summary judgment.

The lower court granted the plaintiff’s motion. The defendant appealed, arguing that the plaintiff should not be allowed to argue the marriage was void because he represented otherwise on their joint tax returns. The court agreed that a litigant could be prevented from taking a position contrary to the position taken for purposes of filing taxes. However, it explained that a marriage that is void couldn’t be retroactively validated because the party held themselves out as being married.

Long Island Family Law and Mediation Blog

Agreeing on an Outcome

Approaching the Topic on Neutral Ground